San Francisco—Californians who’ve merely been arrested and not charged, much less convicted of a crime, have a right to privacy when it comes to their genetic material, EFF said in an amicus brief filed Nov. 13 with the state’s highest court.
EFF is urging the California Supreme Court to hold that the state’s arrestee DNA collection law violates privacy and search and seizure protections guaranteed under the California constitution. The law allows police to collect DNA from anyone arrested on suspicion of a felony—without a warrant or any finding by a judge that there was sufficient cause for the arrest. The state stores arrestees’ DNA samples indefinitely, and allows access to DNA profiles by local, state, and federal law enforcement agencies.
EFF is weighing in on People v. Buza, a case involving a San Francisco man who challenged his conviction for refusing to provide a DNA sample after he was arrested. EFF argues that the state should not be allowed to collect DNA from arrestees because our DNA contains our entire genetic makeup—private and personal information that maps who we are, where we come from, and who we are related to. Arrestees, many of whom will never be charged with or convicted of a crime, have a right to keep this information out of the state’s hands.
“Nearly a third of those arrested for suspected felonies in California are later found to be innocent in the eyes of the law. Hundreds of thousands of Californians who were once in custody but never charged still have their DNA stored in law enforcement databases, subject to continuous searches,” said EFF Senior Staff Attorney Jennifer Lynch. “This not only violates the privacy of those arrested, it could impact their family members who may someday be identified through familial searches. The court must recognize that warrantless and suspicionless DNA collection from arrestees puts us on a path towards a future where anyone’s DNA can be gathered, searched, and used for surveillance.”
California officials argue that the court should follow the lead of the U.S. Supreme Court, which ruled in Maryland v. King that citizens’ privacy rights are outweighed by the government’s need to use DNA to identify arrestees, just as it uses fingerprints.
But DNA samples contain our entire genome—fingerprints don’t. What’s more, Maryland limits DNA collection to those arrested and subsequently charged for serious offenses—in 2013 that amounted to 17,400 arrests. In California, all of the nearly 412,000 felony arrests that same year were subject to DNA collection. Maryland also prohibits familial searches and requires DNA samples to be automatically expunged from databases and destroyed if a person is never charged with or convicted of the crime leading to arrest. California law doesn’t prohibit familial searches, and the state makes it extremely difficult for citizens to have their DNA records removed from the system.
“A lower court in this case correctly recognized that California’s DNA collection law deeply intrudes on the privacy interests of arrestees. The California Supreme Court should come to the same conclusion and strike it down,” said Lynch.
Law professors at UC Davis School of Law, New York University School of Law, Georgia State University College of Law, and UC Berkeley School of Law, as well the Office of the Maryland Public Defender and the National Association of Criminal Defense Lawyers joined EFF in filing the brief.